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Allow Google, Microsoft to disclose national security order data: rights groups

Civil liberties groups filed an amicus curiae brief [text, PDF] Monday in the Foreign Intelligence Surveillance Court (FISC) [FJC backgrounder] supporting efforts by Google and Microsoft [corporate websites] to publish data concerning how many times the government invoked federal law to request user information for national security purposes. The Foreign Intelligence Surveillance Act (FISA) [text] gives the FISC authority to order tech companies to disclose user data but prohibits publication with respect to whether the FISC has issued such an order. Recently, however, the government permitted certain tech companies to publish FISA requests, provided that they lumped the information together with general government requests unrelated to national security. Google and Microsoft joined together [PC Magazine report] in June to appeal a government decision denying their ability to publish information specifically regarding FISA national security orders. The companies reportedly sought to clear their names in the wake of allegedly erroneous media reports implicating them in recent controversies over the National Security Agency (NSA) surveillance programs. Advocacy groups including the First Amendment Coalition (FAC), the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) [advocacy websites] argue the FISC should not deny Google and Microsoft's requests in light of the First Amendment:

Any rule precluding disclosure as to what a party itself is asked to do bears an extremely high burden of justification under broad principles protecting free expression even where the non-disclosure might be sought in service of national security. ... In making this argument, we are not insensitive to concerns for national security. But even those important concerns do not easily, let alone routinely, trump the First Amendment. ... The "free institution" at risk here is nothing less than the guarantee of free expression contained in the First Amendment. The expression at issue on the present motions—speech by Google and Microsoft about their own conduct in responding to any government requests—is central to a significant political debate at the heart of self-government. It implicates the most fundamental First Amendment values and should yield only to a government interest of the highest order subjected to the most searching judicial inquiry. The government's burden is a heavy one, as both broad principles of First Amendment law and narrower decisions issued in strikingly similar national security contexts make clear.
The advocacy groups released a joint statement [press release] acknowledging the need for government secrecy but urging the FISC to protect the First Amendment.

Revelations surrounding US government surveillance programs have sparked worldwide debate and controversy. On Monday a judge for the US District Court for the Northern District of California rejected a motion to dismiss [JURIST report] a lawsuit alleging that the National Security Agency (NSA) illegally surveilled "millions of ordinary Americans" in the wake of 9/11. In July the Electronic Privacy Information Center (EPIC) filed an emergency petition [JURIST report] with the US Supreme Court challenging the NSA's telephone record surveillance program. In June the Guardian reported [JURIST report] that the NSA is collecting call data from Verizon customers under a top secret court order. Also in June Several US lawmakers called [JURIST report] for a review of the government's surveillance activity in light of recent reports revealing phone and Internet monitoring and a criminal investigation into the activities of Edward Snowden, who came forward as the whistleblower in the NSA surveillance scandal. In the same time frame the ACLU filed suit [JURIST report] against the NSA challenging its recently revealed phone data collection. In addition the US government charged [JURIST report] former government contractor Edward Snowden with espionage for leaking top secret documents, according to a sealed criminal complaint filed in the US District Court for the Eastern District of Virginia.

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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